Cases - H W Nevill (Sunblest) v William Press

Record details

Name

H W Nevill (Sunblest) v William Press

Date

[1981]

Citation

20 BLR 78

Keywords

Construction contracts – practical completion – completion of enabling works – defects in enabling works causing delay to subsequent works – extension of time - whether enabling works contractor in breach of contract for defects during defects liability period – whether defects patent – discretion of certifier to certify works as complete with minor defects – Standard form contracts – interpretation of clauses – final certification provision - whether court should use subsequent edition to interpret clauses of previous edition(s)

Summary

In this case, the defendant (William Press) was appointed to undertake enabling works for a bakery. The enabling works consisted of site clearance, piling and foundations and drainage works. The defendant was appointed under the JCT 1963 Standard Form, Private Edition With Quantities, incorporating the 1973 amendments. A certificate of practical completion was issued by the architect on 1 May 1974. The contractor for the construction of the bakery (Trenthams) started work immediately after completion of the enabling works.

By November 1974 it was apparent that there were defects in the drainage. William Press returned to site to correct the defects, but the consequence was a delay to Trenthams' works of 4 weeks, for which the employer was obliged to grant an extension of time.

This litigation was an action by the employer for breach of contract by the defendant. One of the arguments put forward by the defendant was that it was not in breach of contract. It argued that it was not obliged to achieve perfection by the date for completion, as the contract envisaged that defects, shrinkages or other faults might occur during the defects liability period, and that defects and the like therefore did not constitute breaches of contract.

The judge held that the word 'practically' in Clause 15(1) gave the architect a discretion to certify that William Press had fulfilled its obligation under Clause 21(1) (to complete the works) where very minor de minimis work had not been carried out, but that if there were any patent defects in what William Press had done, the architect could not have given a certificate of practical completion. The judge found that defects in the drains discovered after the certificate of practical completion had been issued undoubtedly constituted breaches of contract.

The judge summarised the submissions on this issue as follows:

'(Counsel) made two main submissions to me. The first was that William Press was not obliged to achieve what he described as "perfection" by the date for completion, as the contract envisaged that "defects, shrinkages or other faults" might occur during the defects liability period, and therefore defects and the like did not constitute breaches of contract. He said that although William Press returned the site to Nevill on practical completion, Nevill's right to occupy was qualified by William Press's right to enter and to make good defects.

(Counsel's) second submission was that if contrary to his first submission, the defects, shrinkages and other faults constituted breaches of contract, clause 15 limits their consequences. William Press is obliged to return to the site to make good and Nevill was obliged to allow William Press to do so. The risk of consequential loss was borne by Nevill...

In my view, Clause 15 did not extend the time for William Press to finish the works correctly, nor limit Nevill's right to possession of its own site. Although clause 21(1) uses the word "possession", what it really conferred upon William Press was the licence to occupy the site up to the date of completion. On completion, that licence came to an end, and clause 15(2) and (3) gave only a right to re-enter to such extent as was necessary to remedy defects pursuant to a schedule prepared or instructions given by the architect. I think that defects in the drains discovered after the certificate of practical completion had been given undoubtedly constituted breaches of contract. Clause 15(2) and (3) provided an efficient way of dealing with defects to the advantage of both parties. If Nevill had had to seek contractors new to the site to do the remedial work it might well have had difficulty in finding them. It would also almost certainly have had to pay them more and would then have sought to have recovered from William Press more than the cost to William Press of making good the defects.'